Allen v. City of Atlanta , 166 Ga. 28 ( 1928 )

Hines, J.

(After stating the foregoing facts.) When any municipality shall desire to incur any bonded indebtedness under the present constitution of this State, the officers charged with levying taxes and contracting debts for the municipality shall publish notice for the space of thirty days next preceding the date of the election, in the newspaper in which 'the sheriff's advertisements for the county are published, notifying the qualified voters that on the day named an election will be held to determine the question whether bonds shall be issued by the municipality; and in such notice they shall specify what amount of bonds are to be issued, for what purpose, what interest they are to bear, how much principal and interest to be paid annually, and when to be fully paid off. Civil Code, § 440. This statute has properly received from this court a strict construction. If such notice be given under an ordinance, the latter must contain the above terms and ■particulars, and if the ordinance and notice fail to prescribe any of said terms, both the ordinance and notice are void and of no effect. Bowen v. Greensboro, 79 Ga. 709 (3) (4 S. E. 159); Mayor &c. of Athens v. Hemerick, 89 Ga. 674 (16 S. E. 72); Ponder v. Forsyth, 96 Ga. 572 (23 S. E. 498); Wilkins v. Waynesboro, 116 Ga. 359 (42 S. E. 767); Berrien County v. Paulk, 150 Ga. 829, 832 (105 S. E. 491). So under the above statute the ordi-' nance calling an election to determine whether municipal bonds shall be issued, and the published notice under such ordinance calling such election, shall specify the purpose or purposes for which the bonds are to be issued.

When in pursuance of such ordinance and notice the qualified voters of the municipality vote for an issue of bonds for a specific purpose or purposes, we are clear that the mayor and council of such municipality can not divert the proceeds of such bonds to any other purpose or purposes. They hold such funds in trust for the purpose or purposes for which the bonds were voted. Any diversion of such funds from the purpose or purposes for which they were voted would be a misapplication of such funds, and a breach of the trust imposed in them by the voters. Dubberly v. Morris, 163 Ga. 144, 146 (135 S. E. 718) ; Marks v. Richmond County, 165 Ga. 316 (140 S. E. 880). If the question of the issuing of these bonds for the erection of the new city hall on the lot east of the county court-house had been submitted to the voters, and the selection of the court-house lot had been approved by the voters as the site of the new city hall, then the city could not divert the proceeds of the bonds to the erection of a new city hall on a different site. The erection of the city hall upon the court-house lot and the issuing of the bonds might have been submitted to the voters together; but the better practice is to submit these matters separately. Cain v. Smith, 117 Ga. 902 (3) (44 S. E. 5). So if the selection of the county lot as the site of the new city hall had been left to the voters, and they had selected the county lot as the site therefor, their vote in favor of that site would probably bind the city. In any event, if the voters had authorized the city to issue these bonds, provided their proceeds were used in erecting a new city hall on the county court-house lot, then the bonds could not be issued or their proceeds used for the erection of a new city hall upon any other site. While one city council can not bind another city council in matters of municipal' legislation, the voters, who are the masters, can, in a matter of this kind, bind the mayor and general council, who are the mere servants of the voters.

This brings us to consider the controlling question involved in this case; and that is, whether the selection of the site of the new city hall was submitted to the qualified voters of the city, whether they selected the court-house lot as the site of the new city hall, and whether their approval of the bond issue was based upon the condition that the new city hall should be erected upon the county court-house lot. We do not think that the selection of the site of the new city hall was submitted to the voters of the city, even if such matter could properly have been submitted to their determination. The voters did not authorize the issuing of these bonds upon the condition that their proceeds could only be used in the erection of a new city hall upon that lot. There were two elections in the City of Atlanta upon the question of issuing bonds for the erection of a new city hall. One was held on September 23, 1925. Prior to that election, in which the issuance of $2,000,000 of bonds for a city hall was submitted to the voters, the county commissioners had passed a resolution offering to sell to the city, upon certain terms, a portion of the lot upon which the county court-house is located, for the erection of a new city hall; but this offer was expressly made upon condition that the qualified voters of the city approved the bond issue for the erection of the new city hall. The city, upon the same terms, accepted the offer. Thereafter the voters voted down the proposition of issuing bonds -for the new city hall. This relieved the county of its offer and the city from its acceptance. Thereafter the city proposed to the voters a bond issue of $8,000,000. This plan involved, among other things, an issue of bonds amounting to $1,-000,000 for a new city hall and site. The ordinance submitting to the voters the issuance of bonds amounting to $8,000,000 contained the proposal of an issue of “$1,000,000 of bonds for a city hall and site therefor.” This ordinance further provided, that, if said bonds were authorized for the city hall and site, “the proceeds thereof should be applied exclusively for a city hall and site therefor.” It further provided that the voters in said election favoring the issuing of bonds for the city hall should have written or printed on their ballots the words, “For the issue of $1,000,000 of bonds for a city hall and site therefor;” and that those opposing such issue of bonds should have written or printed on their ballots the words, “Against the issue of $1,000,000 of bonds for a city hall and site therefor.” The published notice of the election contained the above -provisions. So under this ordinance and the published notice of the election the only question submitted to the voters, so far as the city hall was concerned, was whether they would approve or disapprove an issue of bonds of $1,000,000 “for a city hall and site therefor.” The question of the selection of a site for the new city hall was not submitted to the voters. They were not called upon to approve or disapprove the selection of the east portion of the lot upon which the county court-house is located, as the site for the new city hall. At the ensuing election the voters voted for an issue of $1,000,000 of bonds “for a city hall and site therefor.” They did not vote for any particular site. They did not select the east side or any other portion of the lot upon which the county court-house is located, as the site for the -new structure. They left to the city council the plan and character of a new city hall and the selection of a site upon which it was to be erected. No one can read the ordinance providing for this election and the published notice thereof, standing by themselves, and reach the conclusion that the selection of the site was in any way left to the voters of the city. But it is insisted that on February 15, 1926, the mayor and general council passed a resolution which recites that '“it is desired to let the people know at which place new city hall will be built, if bonds therefor are voted,” and that the mayor and general council of the city thereby “select, as a site for the new city hall, if voted, the location east of the present courthouse,” and that they “agree, if said bonds are voted, to build the new city hall on said described land.” It is insisted that the ordinance calling the election, and the published notice thereof, should be construed in the light of this resolution; and that, so construing them, the selection of the site designated ip. the resolution was in effect left to and approved by the voters of the city. While this view is plausible, and while at first blush we were impressed with it, we have reached the conclusion that the bonds for the erection of a new city hall were not voted upon the condition that their proceeds should be used in erecting the structure upon the lot described in the resolution, and not elsewhere in the City of Atlanta. At most the resolution means that the voters should know, before voting, that the mayor and council had selected the site on the county court-house lot, and that they agreed, if bonds were voted, to erect this building on that location. The selection of a site was in no way left to the city voters. The .resolution must be construed in the light of the situation as it existed at the time of its passage. At that time the city had not acquired from the county the east portion of the court-house lot for the erection of the new city hall. It had no binding contract with the county for its acquisition. Whether the selection and the agreement of the majnr and general council could be carried out depended upon their ability to acquire from the county a portion of the courthouse lot and the necessary additional property for the erection of a new city hall at a price which would enable the city to pay for the site and have funds sufficient left for the erection of this structure. By their selection and agreement the city council were not bound, if. it should turn out afterwards that their selection and agreement became incapable of being carried out. The voters are presumed to have understood that the selection of the court-house site and the agreement of the mayor and council to build thereon were necessarily dependent upon the financial ability of the city to acquire the site and to build the new city hall thereon with the proceeds of the bonds voted for that purpose. So while the mayor and general council had selected the county court-house site and had then determined to build thereon, the sole question left to the voters was whether they would approve generally a $1,000,000 bond issue for a new city hall and a site therefor; and in approving such bond issue the voters did not attempt to tie hard and fast the hands of. the city council, so that they could not select another site and build thereon the new city hall, if its erection on the site designated in this resolution could not be used in the erection thereon of the new city hall.

It ig proper to say that the mayor and general council seem to have made a fair and honest effort to acquire a portion of the county court-house lot and other necessary real estate for the purpose of erecting, adjoining the county court-house, the new city hall, so as to carry out the resolution of February 15, 1926, and to secure to the people of the city the supposed advantages of having the new city hall erected by the side of the court-house; and that their failure in this matter was due to their inability to acquire the court-house site at such figures as would enable them to erect a new city hall on that location. It would be stretching this resolution too far to hold that in no event could the mayor and general council erect this building upon any other site. So we are of the opinion that the voters of the city did not approve this bond issue upon the condition that the city hall should be built upon the court-house site in all events, and that the entire enterprise should be abandoned if it became impossible to erect the same thereon. Having voted generally for a bond issue for the erection of a new city hall and for the acquisition of a new site, we can not hold that the mayor and city council was deprived entirely of the general discretion vested in them as to the selection of such site. At most it might be held that the voters, or some of them, approved the selection of the site on the court-house lot, and the determination of the mayor and general council to build the new city hall thereon; but it seems to us that it would be going too far to hold that the voters voted for these bonds upon the condition that their proceeds should be used only for the erection of the new city hall upon the court-house site. At most the voters approved the selection of the court-house site and the decision of the city council to build the new city hall thereon. It can not fairly be held that they made the erection of this city hall upon the court-house lot a sine qua non.

We are of the opinion that the trial judge did not err in refusing the injunction prayed.

Judgment affirmed.

All the Justices concur.